Op-Ed

Immigration reform overlooks asylum-seekers

Harsh rules enacted in 1996 prevent them from working for months or years, making many destitute.

Immaculee Ilibagiza cries as she says pledge of allegiance during the U.S.… (Bebeto Matthews / Associated…)

"Work authorization is not meant to get you rich, it's to let you live," said an Egyptian asylum-seeker who fled to the United States after a radical group beat him and tried to kidnap his wife and daughter. After fleeing persecution in their home countries, asylum-seekers like this man in New Jersey face a new type of maltreatment in the United States: The U.S. government won't let them work during what is often a drawn-out asylum process.

As a result, vulnerable people who come to this country as their last hope too often end up destitute.

The time for immigration reform is undoubtedly ripe, and much of the new proposed legislation and public discourse are focusing on work opportunities. But the plight of asylum-seekers who are prohibited from supporting themselves, so far, is not part of the conversation.

In 1980, Congress amended the Immigration and Nationality Act to bring the United States into conformity with its treaty obligations based on international refugee law. From that time, asylum-seekers were authorized to work if they demonstrated that their asylum claim wasn't frivolous. But in 1996, Congress, concerned about a large backlog of cases and what it perceived as abuse of the asylum system, enacted various measures restricting asylum, among them stricter rules about working.

Congress barred asylum-seekers from working legally for 150 days after filing their applications — plus an additional 30 days to process the application — unless they were granted asylum before that time had passed. The clock that counts those days stops any time the government determines that the applicant delayed the proceedings. But in practice, it is unclear precisely what stops and restarts the clock.

The problem has affected almost all asylum-seekers. In 2011, the clock had stopped at some point for 262,025 people — 92% of all pending cases — according to the federal Executive Office of Immigration Review. Once the clock stops, so does the opportunity to apply for work authorization, leaving too many asylum-seekers without any means to sustain themselves for many months or years.

The settlement of a class-action lawsuit this month will partially address the problem by requiring judges to be more transparent in their reasons for stopping the clock. But Congress ought to address the underlying issue: the basic right of asylum-seekers to sustain themselves, or to be sustained by the government, while their claims are pending.

Hungry and homeless, some asylum-seekers end up in shelters or on the streets unless someone takes pity on them. Most are not eligible for social services or medical benefits, so they must rely on family members, friends or charities for help until resources or forbearance runs out. For many asylum-seekers who are accustomed to providing for themselves, having to depend on others for help is particularly traumatizing. Some end up seeking unauthorized work, leaving them vulnerable to labor — and sometimes sexual — exploitation.

The bar on work authorization may also have a direct impact on a person's ability to establish an asylum claim. Asylum-seekers in the United States are not entitled to court-appointed legal counsel. Because they are not allowed to work, many have no means to hire a lawyer. So many have to navigate an arcane process themselves and go unrepresented before an immigration judge in an adversarial hearing with a U.S. trial attorney on the other side.

Unlike the United States, some industrialized nations — Canada, for example — permit asylum-seekers to work. Others, like the member states of the European Union, have similar bars on employment but instead provide asylum-seekers with social and economic support while their claims are pending, and provide government-funded lawyers for those who can't afford them.

Although the Senate's immigration bill does try to reverse some of the most egregious restrictions on asylum-seekers contained in the 1996 law (such as eliminating a one-year deadline for filing an asylum claim from the time of entering the country), work authorization for asylum-seekers is conspicuously absent from the bill. If immigration reform is truly intended to reflect American values, it ought also to fix the asylum system so that it not only protects refugees but also upholds the values of hard work, rule of law and self-sufficiency. The bill should revert to the pre-1996 standard that allowed asylum-seekers filing non-frivolous applications to work.

Asylum-seekers come to this country in search of safety. But all too often they remain insecure here because they are deprived of the ability to subsist on their own. Asylum-seekers do not ask for handouts. Instead, they ask simply for an opportunity to support themselves and their families, and to contribute to this society in a meaningful, productive way. We should let them.

Bill Frelick is the director of Human Rights Watch's Refugee Program. Brian Jacek, a law student, interviewed asylum-seekers as part of Seton Hall University School of Law's Immigrants' Rights/International Human Rights Clinic.